Dunn grilled by Congress

A congressional committee on Thursday grilled former Hewlett-Packard Chairman Patricia Dunn over why she didn't put a stop to controversial techniques used by the company in an investigation into press leaks.

Under questioning, Dunn was asked why she didn't recognize that investigators would have to turn to dubious means to get personal phone records. Dunn said she relied on the advice of others, including HP's outside investigator, Ron DeLia.

"I did not know where this information could be found publicly, but I was aware that the kinds of investigations done by Mr. DeLia had previously been based solely on publicly available information," Dunn said. "I took the understanding without any question, and I understand why that might seem strange today, knowing what I know now."

Dunn was questioned by the committee, as were HP's outside lawyer Larry Sonsini and HP IT security worker Fred Adler. A number of other former HP employees and contractors refused to testify earlier Thursday, invoking their Fifth Amendment rights against self-incrimination.

The comments came at the start of two days of hearings, by an oversight and investigations subcommittee of the House of Representatives' Energy and Commerce Committee. The hearings regard the practice of pretexting, or obtaining phone records without consent and through the use of false pretenses. Thursday's hearing is devoted to the HP case, while hearings Friday will focus on the broader issue.

Among those who refused to testify was Ann Baskins, who resigned Thursday as HP's general counsel. Also pleading the Fifth were two other HP employees who have left the company, as well as DeLia, the operator of Security Outsourcing Solutions in Boston.

Also refusing to testify were a variety of outside contractors involved in the HP leak investigation, including Joe Depante, owner of Action Research Group in Melbourne, Fla.

As for Dunn, she was asked about a June 15, 2005, meeting at which the methods of pretexting were discussed. Investigations and Oversight subcommittee chairman Ed Whitfield, R-Kentucky, pointed to handwritten notes attributed to Baskins that included Dunn's initials next to questions and also noted that "obtaining phone numbers is a time consuming process" in which investigators call various carriers "and use pretexting to extract the information."

Rep. Greg Walden, R-Oregon, presented Dunn with an e-mail from the day earlier in which Dunn asks DeLia to reschedule a meeting to June 15 so Baskins could be included. In earlier testimony, before Walden presented the e-mail, Dunn said, "I do not recall being in that meeting."

On further questioning, Dunn said that she may have seen the word pretexting, but didn't know it equated to fraudulent misrepresentation. "The word pretext does show up in documents I had seen," Dunn said.

Walden repeatedly asked Dunn how she thought HP was getting the phone records. "My understanding was these records were publicly available," she said, later adding, "I understood that you could call up and get phone records" because she thought it was a common investigative technique.

Walden expressed skepticism, asking Dunn if she really believed that. "I thought a year ago, I thought six months ago, that indeed you could," she said.

"You're serious?" Walden said. "I'm not being funny here. You honestly believed it was that simple?"

He also presented Dunn with documents from a later Wilson Sonsini inquiry that had DeLia and others saying that Dunn was aware of the techniques being used. Dunn said the word "pretexting" may have been used, but that she did not understand that meant fraudulent misrepresentation.

"No one ever described to me that the fraudulent use of identity was part of the HP way of conducting investigations," Dunn said.

Dunn was asked whether she had a problem with the e-mail sting, in which HP sent an e-mail to CNET News.com reporter Dawn Kawamoto under the guise of "Jacob," a ficticious disgruntled employee. "This did raise a concern to me," she said.

But Dunn said she was not the one in a position to decide on such matters. "I sent the team to management to get approval for their techniques," Dunn said.

Asked repeatedly whether she was at all at fault for what happened, Dunn expressed regret but did not accept the blame. "If I knew then what I know now, I would have done things very differently," Dunn said. However, she said, "I do not accept personal responsibility for what happened."

"I think she's basically saying she's not culpable here, and she accepts no responsibilty for what occurred," retorted Rep. Cliff Stearns, a Florida Republican, adding: "Wouldn't it at this point occur to you that you might want to resign because of all these problems?"

"I have done so, sir," Dunn said. As Stearns acknowledged his slip-up, she quipped: "I can do so again if you would like me to," drawing a few chuckles from the audience.

Late in the questioning of Dunn, she said she was aware not only that HP planned to send a fake e-mail, but that investigators were planning to send some sort of tracking mechanism that would allow it to see who opened the attachment. "I did hear the word tracer," Dunn said. "I understand it was a way of confirming the receipt of the e-mail."

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Under questioning, outside lawyer Sonsini said that when he received a report in April on the investigation, he focused on the results of the probe and not the tactics, even though the report mentioned reviewing third-party phone records and the e-mail sting. "It certainly seemed to me to be somewhat over-the-top," Sonsini said. However, he said he was not in charge of the investigation. "Who was in charge was the HP internal legal department. Rightly or wrongly, that's what happened."

HP security worker Adler said, under questioning, that he was the one who came up with the idea to include a software-based tracking device in the e-mail to Kawamoto. "That was my idea," Adler said. "At the time I understood it to be a legally permissible way to obtain information, and I still believe it to be." Adler said it is a tactic still sanctioned by HP and one they have used in past investigations.

Adler said he knows of HP using the tracing technology a dozen or two dozen times, including instances when the company was working with law enforcement.

HP has admitted to accessing the phone records of more than a dozen people, including current and former board members, nine journalists, two employees and an unspecified number of other people. In addition to Thursday's congressional hearings, there are federal and state criminal probes under way, as well as an inquiry from the Securities and Exchange Commission.

The tenor of the hearing in the House of Representatives was set early on as politicians took the company to task for not opposing questionable investigative techniques.

"Where was somebody to say this just wasn't right?" asked Rep. Walden. Walden said that he understands the importance of making sure confidential information stays confidential, but said HP's methods were "horribly outrageous...There's no excuse for it. There just isn't."

In his opening remarks, Rep. John Dingell, a Michigan Democrat, called HP's investigation "a plumber operation that would make Richard Nixon blush."

After concluding her testimony for the day, Dunn posed for group photos with supporters, and her attorney issued a warning to former HP board members Tom Perkins and George Keyworth.

"Those people who served on the board initiated almost everything that you've seen in the last three weeks," said James Brosnahan, Dunn's lawyer. "I am surprised that two former members of the board of HP would step out into the public arena and utter things that have no factual support. This is not the place to deal with it, but I assure you we are going to deal with them and their lawyers." Brosnahan didn't elaborate about what he meant.

The attorney for George Keyworth, the former HP board director who HP has alleged leaked important company information to the press, lashed out at claims made by Dunn during the hearing.

Reginald Brown, of Washington law firm WilmerHale, wrote in a statement to the media on Thursday that HP's leak hunt was both "childish and chilling" and denied some of the allegations Dunn leveled at Keyworth and his involvement with previous leaks.

"Despite the unsupported claims made by Ms. Dunn today," Brown said, "Dr. Keyworth was also not the source of the divisive leaks he and other HP board members rightly decried in the past."

Keyworth, who resigned from the board earlier this month, has maintained that he was permitted by HP to speak to the media on behalf of the company. [News.com has not identified the source for its Jan. 23 story.]

Brown said that none of the information Keyworth passed along was damaging to the company, and noted that Keyworth, nor anyone else spied on by HP, "ever deserved to have their records purloined."